Pande (Migration)

[2017] AATA 336

Pande (Migration) [2017] AATA 336 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Indira Pande
Mr Gomed Pande
Miss Mihika Pande
Master Aryabrat Pande

CASE NUMBER:  1618464

DIBP REFERENCE(S):  BCC2016/543137

MEMBER:Katie Malyon

DATE:23 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 23 February 2017 at 10:28 am

CATCHWORDS
Migration – Cancellation – (Business (Long Stay)) visa – Subclass 457 – Ceased employment exceeding 90 consecutive days – Hairdresser – ASIC deregistration reversed – Sponsor’s review application – New employer – Circumstances beyond control – Nominated by approved sponsor – Decision pending – Cost of returning to Nepal – New employer’s business needs

LEGISLATION
Migration Act 1958, ss 116, 140(1), 348
Migration Regulations 1994, Schedule 2, cl 457.223(4), Condition 8107, r 2.75(2)(c), r 2.43, PIC 4013, PIC 4014

CASES

Drake v MIEA (No 2) (1979) 2 ALD 634
Hneidi v MIAC [2010] FCAFC 20

Qiao v MIAC [2008] FMCA 380  
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Business (Long Stay)) visa (Subclass 457 visa) of Mrs Indira Pande, first named applicant, under s.116 of the Migration Act 1958 (the Act). Relevant extracts from the Act and the Migration Regulations 1994 (the Regulations) are set out in the Annexures to this decision.

2. The delegate cancelled Mrs Pande’s Subclass 457 visa under s.116((1)(b) of the Act on the basis that she did not comply with condition 8107 that was imposed on her visa because she had ceased employment with her sponsor, Ceylon Cut Pty Limited (Ceylon Cut), for more than 90 days.  A copy of the delegate’s decision was provided to the Tribunal.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to Mrs Pande. The other applicants are members of her family unit and their visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1) of the Act, the Tribunal has no jurisdiction with respect to them.

4. Mrs Pande appeared before the Tribunal on 19 January 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from 3 witnesses: Mr Gomed Pande, Mrs Pande’s husband; Mr Ravindra Singh, a Director of Mrs Pande’s prospective employer and approved sponsor Mata Joginder Kaur & Sons Pty Ltd (MJK) trading as Daisy Hair & Beauty; and, Ms Christina Knight, a long-time friend of Mrs Pande’s family.  Mrs Pande was represented in relation to the review by her registered migration agent, who also attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, these include the grounds set out in s.116(1)(b) and s.116(1)(g) of the Act. If satisfied that a ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled having regard to all the relevant circumstances, which may include matters of government policy.

   Background

7. Mrs Pande is a national of Nepal.  She was granted a Subclass 457 visa on 20 August 2014 for a period of 4 years on the basis of an approved nomination for the occupation of Hairdresser lodged by her employer Ceylon Cut Pty Ltd (Ceylon Cut).  She worked at Ceylon Cut’s hairdressing salon in Pendle Hill.

8. As discussed at the hearing and confirmed by documentation the Department’s file, Mrs Pande was notified of the Department’s intention to consider cancellation of her Subclass 457 visa.  She twice received a Notice of Intention to Consider Cancellation (NOICC) from the Department.

9. The Department’s first NOICC was issued on 12 February 2016 (the First NOICC) and refers to advice received by the Department that Ceylon Cut was ‘deregistered on 17 April 2015’.  In her response of 23 February 2016 to the First NOICC, Mrs Pande indicated her shock at receiving in the news.  She confirmed that she, as well as 5 colleagues, continue to work at Ceylon Cut.  She provided evidence of her bank statements dating from October 2015 to February 2016 confirming fortnightly payments of $1,695 to her CBA bank account.  Mrs Pande also included a letter from the Director of Ceylon Cut confirming that the Australian Securities and Investment Commission (ASIC) did not de-register the company but, rather, payment of its annual renewal fee (of $215) was delayed owing to the company’s change of address and the resultant failure to receive notification of monies owing to ASIC.  In addition, she provided a letter from ASIC dated 17 December 2015 (that is, more than 2 months earlier) which notes that the company was reinstated to ASIC’s register on 17 November 2015 and, further, that ‘the registration of the company continues as if deregistration had not occurred’.  Mrs Pande also provided the Department with a copy of the Tribunal’s receipt for payment of a review application lodged by Ceylon Cut.  In her covering letter, Mrs Pande indicates that she understands that the application before the Tribunal relates to ‘the deregistration decision’.

10. A second NOICC was issued by the Department on 18 March 2016 (the Second NOICC). It states that Ceylon Cut’s business nomination (sic) approval was cancelled on 17 December 2015. It is clear to the Tribunal that the Department’s reference to the ‘business nomination’ should be reference to Ceylon Cut’s sponsorship approval as the nomination of the position of Hairdresser for Mrs Pande ceased on 20 August 2014, that is, the day Mrs Pande’s Subclass was granted consistent with the provisions of r.2.75(2)(c) of the Regulations. In the circumstances, it would have been appropriate for the Department to consider cancellation of Mrs Pande’s Subclass 457 visa under s.116(1)(g) of the Act which provides for a prescribed ground for cancelling a visa as set out in r.2.43 of the Regulations. Relevant to the present case, the ground in r.2.43(1)(l) of the Regulations may have been relevant, that is, where a sponsor is sanctioned or the sponsorship approval is cancelled. However, as evident in the delegate’s letter (a copy of which was provided to the Tribunal) there is no reference to s.116(1)(g) of the Act and/or r.2.43(1)(l) of the Regulations. Rather, the delegate formed the opinion that Mrs Pande had breached a condition attached to her Subclass 457 visa and proceeded to cancel the visa pursuant to s.116(1)(b) of the Act.

11. Arising from receipt of both the First NOICC and the Second NOICC, Mrs Pande told the Tribunal that she communicated with the Department directly by telephone in addition to her formal responses to the NOICCs.  Following her discussions with the delegate, even though she was still working at Ceylon Cut and her employer had told her Ceylon Cut was seeking review of the Department’s decision in relation to the company in the Tribunal, she decided to look elsewhere for work because she needed to put the continued education of her 2 children in Australia ahead of whatever problems her employer was experiencing.  Mrs Pande added that, as a highly qualified and experienced Hairdresser, she felt she could readily find work elsewhere, and she did.  She was offered a job with approved sponsor MJK.   Mrs Pande confirmed for the Tribunal that, in the circumstances, she stopped working with Ceylon Cut and has done so for more than 90 days.  She said that she was unaware of the outcome of Ceylon Cut’s application to the Tribunal. 

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(b) of the Act if the Minister (or the Tribunal) is satisfied that the holder did not comply with a condition of their visa. Since Mrs Pande’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations, visa condition 8107(3) is applicable. This requires Mrs Pande to work only in the occupation listed in the most recently approved nomination in relation to her, and only in the business of her sponsor, or an associated entity. In addition, if she ceases employment, the period during which she ceases employment must not exceed 90 consecutive days. There is an exception which includes certain specified occupations not applicable in this case.

13. Mrs Pande’s Subclass 457 visa was granted on 20 August 2014 on the basis of being nominated by Ceylon Cut in the occupation of Hairdresser.  She told the Tribunal that, arising from her ongoing concerns regarding Ceylon Cut and the fact that her employer had told her nothing about any business issues that might impact her visa status in Australia as well as her telephone conversation with the delegate (after receiving the Second NOICC) who told she had just 4 weeks to find a new employer, she decided to pursue work opportunities elsewhere.  As a consequence, she resigned from Ceylon Cut and, as a result, has not worked with her sponsor for a period of more than 90 consecutive days.  Mrs Pande acknowledged she was, therefore, in breach of condition 8107(3)(b).  In the circumstances, the Tribunal finds that Mrs Pande has not complied with condition 8107 attached to her Subclass 457 visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

16. In exercising its power to cancel a visa, the Tribunal should have regard to policy as a relevant consideration.  However, policy is not binding on the Tribunal.[1]  The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this case) the preferable decision.[2]

    The purpose of the visa holder’s travel to and stay in Australia

    [1] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380  

    [2] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34]

17. Mrs Pande told the Tribunal she came to Australia in November 2008 to complete her studies in hairdressing.  Following studies in hairdressing and beauty therapy in Nepal she worked there for 3 years before coming to Australia.  Since arriving in Australia she has completed a Diploma in Hairdressing at Venous Hairdressing College in Sydney and, with a view to opening her own salon one day, she has then completed a Bachelor of Professional Accounting at Holmes Institute in Sydney.  Mrs Pande told the Tribunal that, not long after starting her Bachelor of Professional Accounting, her 2 children came to Australia to join her and her husband. 

18. After completing her Bachelor degree, Mrs Pande said was unsure as to her next steps but decided to take up the offer of employment with Ceylon Cut at Pendle Hill.  However, things took a turn after she received the First NOICC.  She said was stunned because she and 5 colleagues were all still working there, and being paid.  Furthermore, neither her representative nor the owners of Ceylon Cut told her, or anyone else, anything about the operation of the business.  It was only after she received the Second NOICC that she called the delegate and he told she had 4 weeks to find a new sponsor.  Mrs Pande added she was unsuccessful until she stumbled upon the advertisement by Daisy & Hair Beauty.  MJK’s first nomination was unsuccessful due, she said, to an oversight by the representative in failing to provide evidence of labour market testing.  Mrs Pande said she understands a second fully documented decision-ready nomination application by MJK identifying her as the nominee is pending.  Evidence of lodgement of a new nomination was provided to the Tribunal by Mrs Pande’s representative. 

19. In the context of the purpose of Mrs Pande’s travel to and stay in Australia, the Tribunal has considered that MJK is an approved sponsor and that a new nomination application is still pending.  Shortcomings identified in the first nomination have been addressed and, furthermore, Mrs Pande has the qualifications and experience for the role of Hairdresser with MJK.  The Tribunal gives weight to this consideration in favour of not cancelling Mrs Pande’s Subclass 457 visa.

20. The Tribunal has also considered that Mrs Pande’s employment with her approved sponsor Ceylon Cut ceased more than 90 days ago and that she resigned her employment to seek sponsorship with her prospective employer MJK.  The Tribunal gives weight to this consideration in favour of cancelling the visa.

    Extent of compliance with visa conditions, now and on previous occasions

21. Mrs Pande told the Tribunal that she has been compliant with all conditions attached to her former Student visas.  There is no information before the Tribunal inconsistent with Mrs Pande’s evidence in this regard.  The Tribunal discussed visa condition 8107 with Mrs Pande.  She acknowledged that she has not worked for Ceylon Cut for more than 90 days.  Since her Subclass 457 visa was cancelled on 31 October 2016, Mrs Pande has secured a Bridging E visa with work rights.

22. The Tribunal is satisfied that its consideration of the extent of Mrs Pande’s compliance with visa conditions, now and on previous occasions, is not a reason to make a decision not to cancel her Subclass 457 visa.

    The circumstances in which the ground for cancellation arose  

23. Evidence before the Tribunal indicates that the circumstances giving rise to the cancellation ground were fundamentally beyond Mrs Pande’s control.  Publicly available information on ASIC’s database confirms that her sponsor Ceylon Cut was deregistered from 17 April 2015 but that it was re-instated to the register on 15 November 2015.  As noted in the letter from ASIC provided to the Tribunal by Mrs Pande’s representative, the effect of reinstatement is that the registration of the company continues as if deregistration had not occurred.  The decision by the delegate on 31 October 2016 to cancel Mrs Pande’s Subclass 457 visa was based on findings about the cancellation of Ceylon Cut’s ‘nomination approval’ on 15 December 2015.  As noted above, reference in the delegate’s decision to cancellation of Ceylon Cut’s ‘nomination approval’ should have been reference to cancellation of its sponsorship approval.  Neither Mrs Pande nor her representative was aware of the status of Ceylon Cut’s application to the Tribunal for review of the Department’s decision to cancel its sponsorship approval.  The Tribunal is not at liberty to disclose details of the status, or the outcome, of that review. 

24. Arising from her discussion with the delegate and the confusion regarding the status of Ceylon Cut’s ‘nomination approval’ (sic) Mrs Pande began to look elsewhere for work and, upon successfully finding an employer willing to sponsor her, she resigned her employment with Ceylon Cut.  The (second) nomination application by approved sponsor MJK remains pending.

25. The Tribunal gives weight to this consideration in the exercise of its discretion not to cancel Mrs Pande’s Subclass 457 visa.

    Visa holder’s past and present behaviour towards Department

26. Information held in the Department’s file indicates that Mrs Pande has been co-operative with the Department.  She responded to the First NOICC issued by the Department on 12 February 2016 within a fortnight expressing her shock at the information provided by the Department.  She questioned why, if the Ceylon Cut had been deregistered on 17 April 2015 as claimed, she was receiving a letter from the Department 10 months later on 17 February 2016 in circumstances where she had continued to work for the company throughout this time, has been paid by Ceylon Cut as demonstrated by the bank statements provided by her and, furthermore, none of her 5 work colleagues has received any such letters from the Department. 

27. Mrs Pande also responded to the Second NOICC of 18 March 2016 within a fortnight following her telephone call to the delegate.  In her response to the Second NOICC Mrs Pande noted that she continues to work with, and be paid by, Ceylon Cut and asks why the Department says one thing (the ‘nomination approval’ (sic) is cancelled) whereas her employer says it is not.   

28. The Tribunal gives some weight to consideration of Mrs Pande’s past and present behaviour towards the Department in not cancelling her visa.

    Whether there would be consequential cancellations under s.140 of the Act

29. As noted above, Mrs Pande told the Tribunal that her husband (the second named applicant) arrived in Australia in late 2008 and their 2 children (the third and fourth named applicants) have since arrived. 

30. It is the Tribunal’s opinion that if Mrs Pande’s Subclass 457 visa is cancelled her family unit would remain together. The Tribunal gives little weight to consideration of the consequential cancellation of Mrs Pande’s family’s Subclass 457 visas under s.140 of the Act in not cancelling her visa.

    Degree of hardship 

31. The Tribunal has considered the hardship that may be caused if Mrs Pande’s Subclass 457 visa is cancelled.  She told the Tribunal that she and her husband came to Australia to make a new life themselves here.  Since then, her children have arrived and they are both now attending school.  Mrs Pande said her 10-year-old son and 15-year-old daughter are academically very good but have become depressed because they do not understand what is happening although they know that something is wrong.  She said the family sees their future in here, given the many opportunities that Australia offers.  She added it would be really hard, especially for her kids, if the family is forced to return to Nepal because, as a mother, she does not want to see her children go down.  Mrs Pande said her son, in particular, would find a return to Nepal especially difficult.  She said that even though she speaks to him in Nepalese he only ever responds in English.    

32. Mrs Pande told the Tribunal her husband has a good job at Coles.  She added that their house was destroyed in the recent earthquake in Nepal so it would be especially hard for them to go back.  In his oral evidence to the Tribunal, Mr Gomad Pande echoed the sentiments of his wife.  Witness Ms Knights told the Tribunal that she has known Mrs Pande and her family since they arrived.  She also expressed concerns regarding the impact on Mrs Pande’s children should the family be forced to return to Nepal pending the outcome of MJK’s nomination application. 

1. While the Tribunal accepts that leaving Australia would involve some adjustment for Mrs Pande and her family it is nonetheless of the view that any difficulties would not be significant given the tertiary studies she has undertaken in Australia and the employment experience that both Mrs Pande and her husband have gained here.    

2. The Tribunal gives little weight to these considerations in favour of not cancelling the visa.

   Whether there are mandatory legal consequences to a cancellation decision

3. The Tribunal finds that affirming cancellation of Mrs Pande’s Subclass 457 visa could result in her and her family being unlawful if they do not leave Australia in the permitted time and they may thereby be subject to being detained at a Detention Centre.  The Tribunal gives little weight to this consideration in not cancelling the visa.

4. Mrs Pande currently holds a Bridging E visa with work rights allowing her to remain lawfully in Australia and, should she wish to apply for another visa from overseas, she will not be subject to a penalty under Public Interest Criterion (PIC) 4013.  Furthermore, as she obtained her Bridging E visa on 8 November 2016 (that is, within 10 days of cancellation of her Subclass 457 visa on 31 October 2016) she will not be subject to a risk factor under PIC 4014 precluding her from lodging anther Subclass 457 visa for 3 years.

5. The Tribunal gives no weight to this consideration in not cancelling the visa.

   Whether there are obligations under international agreements that would be breached

6. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mrs Pande’s Subclass 457 visa.  Neither Mrs Pande nor her representative made any submissions in this regard. 

7. The Tribunal gives no weight to this consideration in not cancelling the visa.

   Other considerations

8. The Tribunal has considered Mrs Pande’s evidence that she arrived in Australia in 2008 and, since then, she has obtained qualifications in both Hairdressing and Accounting.  She told the Tribunal that she plans to open her own hairdressing and beauty salon one day.  It has also considered that she has been nominated by approved sponsor MJK and that the Department’s decision on MJK’s nomination application is still pending.  Whilst it is uncertain if, and when, the nomination application lodged by MJK will be approved, the Tribunal notes the shortcomings identified in relation to the first nomination (which was refused owing to the company’s representative’s failure to attach evidence of labour market testing) has, based on MJK Director Mr Ravinder Singh’s evidence to the Tribunal, been addressed in the nomination currently with the Department. 

9. Whilst it would be open to Mrs Pande and her family to return to Nepal and await the outcome of MJK’s nomination application and, further, in these circumstances Mrs Pande would not be the subject of a PIC 4014 bar on applying offshore for a new Subclass 457 visa for 3 years (because she was granted her Bridging E visa within 28 days of cancellation of her Subclass 457 visa), the Tribunal accepts the cost of returning to Nepal with her family would be a considerable expense.  The Tribunal also notes the oral evidence of Mr Singh that Mrs Pande’s skills will good for his business, he genuinely needs her level of expertise in his business is really looking forward to her contribution to the business.

10. The Tribunal gives weight to these considerations in not cancelling the visa.

    Conclusion

11. Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of not cancelling Mrs Pande’s Subclass 457 visa outweighs that in favour of cancelling her visa.  For these reasons, the Tribunal has formed the view that this is an appropriate case to exercise its discretion and not cancel Mrs Pande’s Subclass 457 visa. 

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

13. The Tribunal has no jurisdiction with respect to the other applicants.

    Katie Malyon

    
    Member

    Annexure A – Extracts from the Migration Act 1958

    
    
    s.116 Power to cancel
    
    

    (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

    (aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

    (b)  its holder has not complied with a condition of the visa; or

    (c)  another person required to comply with a condition of the visa has not complied with that condition; or

    (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

    (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)  the health or safety of an individual or individuals; or

    (f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

    (fa)  in the case of a student visa:

    (i)  its holder is not, or is likely not to be, a genuine student; or

    (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

    (g)  a prescribed ground for cancelling a visa applies to the holder.
    
    

    (1AA)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
    
    

    (1AB)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

    (a)  incorrect information was given, by or on behalf of the person who holds the current visa, to:

    (i)  an officer; or

    (ii)  an authorised system; or

    (iii)  the Minister; or

    (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or

    (v)  any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

    (b)  the incorrect information was taken into account in, or in connection with, making:

    (i)  a decision that enabled the person to make a valid application for a visa; or

    (ii)  a decision to grant a visa to the person; and

    (c)  the giving of the incorrect information is not covered by Subdivision C.

    This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
    
    

    (1A)  The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
    
    

    (2)  The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.
    
    

    (3)  If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

    s.140 Cancellation of visa results in other cancellation
    
    

    (1)  If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
    
    

    (2)  If:

    (a)  a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

    (b)  another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

    the Minister may, without notice to the other person, cancel the other person's visa.
    
    

    (3)  If:

    (a)  a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and

    (b)  the person is a parent of another person; and

    (c)  the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

    the other visa is also cancelled.
    
    

    (4)  If:

    (a)  a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and

    (b)  the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;

    the cancellation under subsection (1), (2) or (3) is revoked.

    oOOo
    Annexure B – Extracts from the Migration Regulations 1994

    r.  2.43 Grounds for cancellation of visa (Act, s 116)
    
    

    (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

    …

    (l)  in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor )--that:

    (i)  the sponsor has not complied, or is not complying, with the undertaking given by the business  sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
    (ii)  the sponsor has given false or misleading information to Immigration or the Tribunal; or
    (iii)  the sponsor has failed to satisfy a sponsorship obligation; or
    (iv) the sponsor has been cancelled or barred under section 140M of the Act; or
    (v)  the labour agreement has been terminated, has been suspended or has ceased;

    …

    Schedule 8  - Visa Conditions 
    
    

    8107 (1)  If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)  cease to be employed by the employer in relation to which the visa was granted; or
    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted.
    
    

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or
    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted.
    
    

    (3)  If the visa is , or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)  the holder:

    (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and
    (ii)  unless the circumstances in subclause (3A) apply:

    (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
    (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
    (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor; and

    (aa)  the holder must commence that work within 90 days after the holder's arrival in Australia; and
    (b)  if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days; and
    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder must:

    (i)  hold the licence, registration or membership; and
    (ii)  comply with each condition or requirement to which the licence, registration or membership is subject.
    
    

    (3A)  For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
    (aa)  if the nomination is made on or after 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
    
    

    (3B)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and
    (b)  if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days.

    
    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
    (b)  a Subclass 402 (Training and Research) visa; or
    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.

    …
    
    
    8501  The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

    oOOo